Brits Discover Neurolaw, Rediscover Hume


Courtesy of CharonQC, this Times Online column by Raymond Tallis of “observations” about neurolaw and the inclination to blame someone’s brain for his behavior. Tallis’s observations are in response to Simon Myerson, QC’s column from yesterday’s Times Online (Simon’s blog).

Professor Tallis observes:

The brain is usually blamed for actions that attract moral disapprobation or legal sanction. People do not normally deny responsibility for good or neutral actions such as pouring out a cup of tea. This is a pick ‘n’ mix approach to human action and intent, and grounds, I would say, for treating the ‘my brain made me do it’ plea of mitigation with some suspicion.

That observation — that the brain is generally not credited for actions approved of by society — is valid, but the conclusion that Professor Tallis reaches — that this is a reason to treat neurolegal mitigation with suspicion — does not follow. Human nature being what it is, people want to see themselves in the best light possible; the fact that the firing of neurons gets more blame than credit reflects that desire.

The human desire to see oneself in the best light possible provides reason to doubt the orthodox assumption that something other than our brains is responsible for our actions. Philosophy has historically been written by the privileged (who else has had the leisure to think about what we are and why we do what we do?). The privileged have a stake in taking credit for their position. The disadvantaged, by the same token, have reasons to blame their brains for their actions, but who listens to the disadvantaged? If those who wrote the doctrine of agency (free will) had a personal stake in believing in agency, we should question that doctrine especially closely.

Two things about theories:

Desirability does not affect truth. Whether agency exists or not is unaffected by our desire to take credit for our “accomplishments”.

The appearance of truth is not truth. Consider theories concerning the motion of the planets. The sun might appear to be carried across the sky every day, but it isn’t. The Earth might appear to be the center of the universe, but it isn’t. (What changed? Our frame of reference.)

If I am correct that everything my clients do is attributable to their genes and their environment — in other words, to the way their brains are made — then it would be dishonest of me to argue that anything I do is attributable to anything other than my genes and my environment. I am supremely lucky; if I were religious I might say that I was “blessed”.

Professor Tallis further observes:

There are events that clearly owe their origin to the brain alone – for example, the twitching associated with an epileptic fit. And then there are actions that do not begin and end with the brain. While someone is clearly not responsible for having epilepsy, can the same be said if that person drives illegally, against medical advice and causes a fatal crash?

While it appears to have been intended as a rhetorical question calling for a “no” answer, the answer to this question is in fact “yes.” We can say that the actions of a person driving against medical advice owe their origin to the brain alone. Why? Because science hasn’t found anything other than the brain that drives us to do the things we do; it probably never will. With the most sophisticated devices we have (our brains) we will likely never be able to prove the existence of ghosts in those machines.

The one experiment that could prove the existence of agency is this: two identical people with identical brains (down to the last neuron) in identical circumstances; if they behave differently, there is a ghost in the machine (and if they don’t, the experiment is inconclusive). It’s an impossible experiment to conduct with humans.

Neuroscience cannot prove, and probably cannot disprove, the existence of agency. Whether we are free agents or not is a deeply philosophical question that science is unlikely to satisfactorily answer.

What neuroscience has shown us recently that we didn’t know before is that development of or damage to certain areas of the brain causes certain predictable “personality” changes. We once believed that we humans were free agents who could to a large extent overcome our genes and our environment. Now our frame of reference expands, and we know that the extent to which we can overcome our genes and environment is, at most, less than we once believed. We now know that sometimes people are “mean” or “irresponsible”, because of the way their brains are made. We resist the idea that we are all of the ways we are because of the way our brains are made just as we resisted the idea that the Earth was not the center of the universe, and for much the same reason.

Professor Tallis also observes:

My-brain-made-me-do-it as a defence sucks out the agency in our actions, turning us into little more than a bundle of synapses and nerve impulses: our nervous system determines us absolutely. In the end there is no agency, and no toe-hold for the first-person (or indeed any person) viewpoint. The brain is ownerless – it is no-one’s brain – and the self that appropriates it vanishes into a boundless, personless, net of causes and processes.

But why stop at the brain? Since the brain is causally wired into nature at large, ‘my brain made me do it’ actually means that ultimately ‘the Big Bang’ made me do it. Neuro-determinism quickly slides into determinism tout court. It is one long chain of knee-jerk responses undeflected by agency, from the Big Bang to the Big Crunch. Individual responsibility is lost in this.

This is pretty much correct. If our personalities (shorthand for the complex combination of choices we make) are attributable only to our brains (shorthand for the complex combinations of genes and environment that form those organs), then determinism (hard or soft) is the inevitable outcome. Our criminal justice system is based in part on the idea that we are responsible for our own actions. That a theory challenges the orthodoxy, however, is not a reason to reject it.

So what? How does the loss of the illusion of agency affect the criminal justice system? If everything we do is the result of a long chain of responses undeflected by agency, then punishment for people violating society’s norms is still appropriate. Most of the usual penological aims — specific deterrence, general deterrence, incapacitation, and rehabilitation — are valid reasons to punish a person even if his acts were the inevitable result of a chain of events beyond her control. What must fall by the wayside is retribution — to act in retribution against someone for acts that followed inevitably from a chain of events outside her control is using the person as a scapegoat for the chain of events that led to the action. That is mean and irresponsible.


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